Katju must reveal more to carry conviction

Press Council ofIndiachairperson and former SupremeCourtjudgeMarkandey Katjuhas alleged that one of his brother-judges in the Madras High Court was corrupt and that the patronage of a party belonging to theUnited Progressive Alliance(UPA) coalition and “improper compromises” by three successive chief justices of India helped him to keep the job.

He did not name the judge, the party or the senior Congress minister of the UPA government who is said to have managed that party’s threat to bring down the government. But he mentioned enough for inquisitive people to ascertain their identities or at least make informed guesses.

The media revealed that the judge in question was S. Ashok Kumar, who died in 2009. He was appointed additional judge of the high court in April 2003 after he had served asdistrict judgefor 15 years. At that time, theNational Democratic Alliance(NDA) was in power in New Delhi and the DMK was a partner in the government. Before joining the state judicial service, Ashok Kumar was active in politics and contested assembly elections twice as a Janata Party candidate.

The DMK’s interest in him was attributed to his granting bail to its chief M. Karunanidhi after he was arrested in 2001 in connection with a corruption case. The arrest at an unearthly hour smacked of vindictiveness. “Is your heart made of muscle or mud?” Ashok Kumar asked the police when the former chief minister was produced before him. “What was the pressure on you to arrest a 78-year-old man suffering from various ailments?”

The Hindu reported at that time that Ashok Kumar’s sharp question had caught the public imagination as an all-encompassing rebuke to the police who showed scant regard for the law in their everyday functioning and had made him the man of the moment in Tamil Nadu.

While dealing with the case against Karunanidhi, he reportedly received threatening calls and his car was hit by a van belonging to the Jaya TV channel. NDA Convener George Fernandes appealed to the authorities to provide him adequate security.

While practising as a lawyer, Ashok Kumar had successfully campaigned for the setting up of a commission of inquiry into the rape of 17 Dalit women in a village in his native district Thirunelveli. Yahoo! listed him among Dalits and Adivasis who had risen to high positions.

From these facts it emerges that Ashok Kumar belonged to the non-Dravidian political stream and had raised the hackles of casteist elements before his appointment as district judge but was drawn into the feud between the Dravidian parties after he granted bail to Karunanidhi, whom Chief Minister J. Jayalalithaa’s police was perceived to have arrested in a high-handed manner.

This background is missing from the accounts of Katju, who is economical with facts and repeatedly refers to Ashok Kumar, with uncharacteristic judicial impropriety, as a “corrupt judge”.

Katju’s account of the Ashok Kumar affair appeared under the heading ‘How a corrupt judge continued in the Madras High Court’ in his blog, which is grandiloquently titled “Satyam Bruat”. It appeared simultaneously in The Times of India. The newspaper used it not as an article but as a news story, which was presumably a privilege extended to Katju by virtue of his status as Press Council chief.

It was the second piece on his experiences as chief justice of the Madras High Court during 2004-05. In the first one he had revealed that when he assumed office he took an oath to himself that he would do his duty to the Madras High Court even if it meant losing the opportunity to become a Supreme Court judge.

According to Katju, there were several allegations of corruption against Ashok Kumar. When he was district judge, high court judges had recorded eight adverse entries against him but an acting chief justice, by a single stroke of the pen, deleted all of them. Since he was getting many reports against Ashok Kumar’s corruption, he requested Chief Justice R.C. Lahoti to ask the Intelligence Bureau to make a secret inquiry. Lahoti told him later the complaint had been found to be true. He, therefore, assumed that Ashok Kumar’s services would be discontinued on the expiry of his two-year term but he got a year’s extension.

The rest of the Katju narrative is hearsay. He learnt that the Supreme Court collegium had recommended that Ashok Kumar’s services be discontinued but DMK MPs met Prime Minister Manmohan Singh at the airport before he left for the UN General Assembly session and threatened to withdraw support to the UPA government if his services were not continued. Manmohan Singh panicked but a senior Congress minister offered to sort things out. After this minister met Lahoti, he wrote to the government to give Ashok Kumar an extension.

Still later Chief Justice Y.K. Sabharwal gave Ashok Kumar a further extension and Chief Justice K.G. Balakrishnan confirmed him as a permanent judge and simultaneously transferred him to another high court.

Katju said in conclusion: “I have related all this to show how the system actually works, whatever it is in theory.”

The day after the post appeared, Katju placed himself at the disposal of the channels to answer questions. But when a NDTV anchor asked why he had chosen to make the revelation a decade after he left the high court, he walked out of the studio. However, he explained in his blog that he remembered the Ashok Kumar affair when he started writing about his Chennai days at the request of some Tamils on Facebook.

Following up on the Katju story, The Times of India published a facsimile of the letter Lahoti had written to the government agreeing to extend Ashok Kumar’s services as additional judge “in view of the sensitivity in the perception of the government”. It is dated July 18, 2005. Manmohan Singh left for the UN session only in the second week of September. The airport drama in Katju’s account must therefore be a figment of someone’s imagination.

Since the major dramatis personae have confirmed that there were differences between the judiciary and the executive on Ashok Kumar’s appointment, there is no need to quibble over minor departures from the facts. Such differences are a necessary part of the consultation process. The pressure the DMK exerted to get a favourable decision is not something unusual or unheard of in the working of coalitions.

Katju cannot be faulted for being highly critical of the DMK. In the very first piece on his Chennai experiences he has mentioned that the state’s AIADMK chief minister never interfered in the judicial process or pressured him to recommend any name for judgeship but the DMK, which was part of the coalition ruling India, had put tremendous pressure on him to recommend the names of some whom he found to be totally undeserving.

After the Katju bombshell and the discussion that followed, the question whether Ashok Kumar was a corrupt judge, as he has alleged, still begs for an answer. That the DMK, which had batted for some undeserving candidates for judgeship, favoured his appointment as permanent judge is not sufficient ground to conclude that he was corrupt. Katju has not provided any information on Ashok Kumar’s alleged deeds of corruption or the nature of the adverse entries against him. He must be aware of the adverse entries which his predecessor deleted since they are on files to which he had access. Since he has provided no specifics, the public has before it no material on the basis of which it can decide whether Lahoti and his two successors made “improper compromises”, as he has alleged.

According to a newspaper, the adverse references in the IB report “apparently dealt with 2002 and 2003 when Kumar was a district judge in Krishnagiri, in Tamil Nadu, but not very far from Karnataka, and he used to spend weekends in Bangalore”. The IB’s dubious role in cases like the ISRO spy case of Kerala, which the Supreme Court found to be baseless, and the Gujarat fake encounter cases, which are still under judicial scrutiny, raises the question how much reliance can be placed on its report relating to a person who has displeased men in uniform. Assuming that its report was unbiased, we still have to ask ourselves if spending weekends in Bangalore is sufficient ground to dub a judge corrupt.

As the BJP and the AIADMK on the one side the Congress and the DMK on the other vied with each other to exploit Katju’s revelations politically, eminent lawyer Ram Jethmalani observed that he should have spoken at the right time. Some said he should have shown the courage to resign on this issue.

What would have happened if Katju had resigned on this issue? In all probability, the politicians would still have persisted with partisan battles and the CJIs would still have made improper compromises and he would have missed his promotion to the Supreme Court.

Katju must come up with more facts to carry conviction. If he doesn’t, one will be constrained to conclude that he unwittingly became involved in the Dravidian parties’ feud in which Ashok Kumar had got caught and that he too was willing to make an improper compromise.